Waring V Dunlea Case File

State of New York, J
Comity of New York, j ss - ■'

No..

.SERIES D

Form 2

I, ALBERT “ARINELUjClerk of the County of New York, end also Clerk of the Supreme Court in and for
DO HEREBY CERTIFY, TJj^t saMCourtip^Coiirt of Record, having by law a seal; that

whose name is subscribed to the annexed ’ reVtifiMtV ’ 'i " ' ;

annexed instrument was at the time of taking The same a NOTARy'pfT^T" 4 f

mem and qualification as Notary Public for the Countv of

the^laws .HT&TSS York lo S$J °£, g p ' j»iy V

administer oaths and affirmations- to take affidavits cer . t,fy depositions; to

and proof of deeds and other written instruments $ ertl / y the acknowledgment

tnents to be read in evidence o7 recorded ?n tffis staL aS’ ZT^u and T heredita '

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Execrated sane date and place by personal service on and
copy to BL chard Justin Dunlea*

This 24th, day of Sept 1956.

F»S. Worthy, Uni ted States Marshal.

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©xatrirt fflnurt of tty? United States rtf Amertra

Eastern District of north Carolina

AT Wllmiagtoa,.. N»C .

FOURTH DISTRICT

THE UNITED STATES OF AMERICA

To R icha rd Austin Dunlea

. , Greeting:

WE COMMAND YOU, and every of you, that you appear before the Judges of our District Court
of THE United States of America, for the Eastern District of North Carolina, at the Office of the Clerk

of said Court, in the City of-.,...W.ilMihg. , ltQIl > .....II#..G.#. , in said District, on the 84.... o;f . .. October

next, to answer the Bill of Complaint of EE.©.d...SarlOg _...

S. citizen and resident of the State of P®B.aylva3lia ; filed j n the

Clerk’s Office of said Court, in said City of then and there to receive and

abide by such Judgment and Decree as shall then or thereafter be made, upon pain of Judgment being
pronounced against you by default.

To the Marshal of the Eastern District of North Carolina to Execute.

WITNESS, The Hon. Charles Evans Hughes, Chief Justice of the Supreme Court of the United

States, at , in said District, the. Slid day

of SipiliSfil , 193 6 , and in the IM th year of the Independence

of the United States.

Issued the— M4. day of.. Sep.isalME , 193 6.

... Ajshtii

The within-named defendants are notified that unless they enter their appearance in the Clerk's Office

of said District Court, at.. W.ilTking.t.02ij H*..C.*....., and file their answer, or other defense, on or before

the 20th day after service hereof, excluding the day of service, the bill filed herein will be taken as confessed
and a decree entered accordingly.

X Clerk

Clerk U. S. District Court.

Deputy Clerk.

Solicitors for Complainants.

Received the within at W1 Islington ,K < C « Sep temab r 24th., 1936:

Executed nmm date and place hy personal service on and
copy to Richard. Austin Banina,

This 24th » day of Sspt 1936, F.S. Worthy, Uni ted States Marshal,

PC® THE EiLSTSRN DISTRICT OP WORTH CAROLINA ,

SB YOKING.

3HARD AUSTIN DUNTJ8A.

Defendant

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.ftOlf uOSfiSS the plaintiff 5,r. the above entitled cause end files tb
:hln i^terrcgatoriftfi under the provision of Equity Rule 58, to be answer
unoer oath by the defendant, Richard Austin Bunlea, within fifteen days
■«r they have boon served on his Solicitor of record, Alan A, Marshall,

Vitat 5 a your

VShat financial
9 26, 1936*1

arrangement did. you have in. radio station W. M, F, 13

® dJ $

Aio has charge of the programs for the aforesaid station on the afore.

las any record kept of the musical compositions broadcast on the afon
' Stati0n CB the ^raeaM data! If your answer is res. nleasa attach

IN THE DISTRICT COURT 0? THE UNITED STATUS

for the eastern district of north Carolina

FRED WARING, :

»

Plaintiff

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TS. : Ilf EQUITY

RICHARD AUSTIN DUNLEA, :

*

Defendant :

«•©****•»#*«• • •••#•••*••

NOW GOMES the defendant in the above
entitled cause and files the within answers to the interro-
gatories put to this defendant by the plaintiff in the above
entitled cause.

1. Richard Austin Punlea

2. Stockholder and Manager

3. Richard Austin Dunlea and W. £. Britt

4. Yes. See copy attached marked "Exhibit A u .

5. Yes

6. Yes

7. No

8. None— ‘except as a minority Stockholder.

9. Yes. A copy of such record is not attached in view

of the fact that the type of announcement desired is not stated
by the plaintiff. The defendant * s records of such announcements
are so kept as to make it impracticable to compile a complete
copy of the record of the day’s announcements^ -Unless the
particular type of announcement is specified, inasmuch as
announcements covering advertisements are kept separate and the
different classifications are filed under separate heads. If
the plaintiff will furnish the defendant with a statement of the
type or kind of announcement s plaintiff desires defendant will
gladly furnish said plaintiff with a copy of such record.

"EXHIBIT a”

Hadio Station IKPD
Reouest Program 2:00-8:30
Thursday, June 85th, 1956.
Announcer . . . . „R. A. Dunlea

Theme ) WABA SH B1U&S

Blue Illusion. . .

Andy Kirk and his orchestra

Is it true what they say about Dixie?
Ambrose and his orchestra

Lights Out

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the costs and disbursements of this action and reasonabl
fees, and for such other and further relief as to the Court
may seem Just and equitable# ^

'«yW. . W l M i i » l| .:. r . j| ■< my i.ii

Sbrioitorror i)ef ©Mane

Defendant*

By f'/'V'; \Ja^p<^- ■

CHARD AUSTIN DUNLEA.

DECREE

5. The talents , creatio:
a performing artist may only be u;
the terms and. o® ditions imposed 1
us© is an infringement of his pro;
to Ms name and commercial worth,
4* Protection should be

-1* ife

IS THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WILMINGTON DIVISION

FRED WARING. COMPLAINANT,

RICHARD AUSTIN DUELS A* RESPONDENT.

Is Equity Cause in which Complainant seeks to enjoin
Respondent from using or playing on Respondent *s radio station if if f D,
certain electrical transcriptions of musical interpretations or ren- '
dxlxons of Complainant * s orchestra. A Notice appears on the record
or electrical transcription that the record, is to* be used only on the
Ford Motor Program and limited to such use on the part of the" distri-
butee. Respondent was not a distributee and the record was played
ty Respondent on a program other than the Ford Motor Program.*

FINDINGS OF FACT .

1. ^ That there is diversity of citizenship and the juris-
dictional amount is present.

h. That Complainant is the owner of an orchestra, nationally
knowi and that he made certain electrical transcriptions
of ^ his unique interpretations of different musical* numbers,
which for a consideration he distributed over the radio on
a special program, known as the Ford Motor Program.

3» That the transcriptions contained a notice or legend
that the use was limited to the distributee station for
the purpose only of being played on a definite program.

4. That . Respondent without the consent of Complainant, and
sot using one of the licensed distributees, played one of
t'QiapleijXiSTrfc ’ s musical numbers ^Wa—Hoo 55 on his radio station,
this number being one of the presentations of a. musical
number contracted for on the special program.

8 • Tn&t ooth Complainant and Respondent are engaged is, a
business of selling musical entertainment to the public.

CONCLUSIONS O F LAW.

It appears to the Court that Complainant has created by his ef~

for la and talents a distinctive style known as bis style, to the inter-
pretations of musical numbers. Ho desires to sell or license mth
renditions * This presents the first questions Does Cosmlainsnt have
mmh «n„ interest in his unique rendition that it is a distinct and
separable property right? My answer is, yes.

. . Sights .xn personal property are of no less importance than

rxga wS ,ln,^ r@ax property* To say that person property cannot be di-
irxaecl in its uses and distribution of its uses would be like saving
that real property can only be conveyed in fee simple* The ©tier"
coarse has been definitely established. Land is subject to restric-
tions , and chattels are likewise subject to restrictive uses.

•’Just a# modem needs have brought equitable
restrietipfis am land, of which the old common
law knew nothing, into existence, they may also
call for a limited departure from the free trans-
lei ©f chattels for the sale© of promoting desirable
business practices wholly strange to Coke’s day,** "

SI Harvard Law Review 946,983,

t-csapl&inaiit has a property right in has performance. Complainant
fay mental labor creates something which is the subject of sale, for he '
ij.as coacracted for its rendition with the Ford. Motor Company. It is
ni» work, his property, and so recognised.

"Nothing can with greater propriety be called a
ass *s property than the fruit of his brain."

Coping er 5 s Law of Copyright, 5th Ed, ?g. l.

M dramatic performance gives life to the story, ard is the p**©»,
perty of the interpreter. The great singers and actors' of this ’’day
give something to the composition that is particularly theirs, and to

y, y, - .. x *,•>=.,*,, , ,, •

JJ* * a ? *» they may see fit, when they see fit. Surely

fea©ir ^ labors and talents arc# entitled to the privilege of di stribution *
especially where, as here, the privilege is subject to definite tanas
ana. oeunds* They have 9a exclusive right in their property and thus
heir© a right to prohibit its unauthorised public performance.

Ferris vs Frofcmsn, £25 U. 8. 424 (1912)

Palmer vs Pa Witt 47 JT y BoZ (1372)

Tompkins vs Hailed 158 Mass. '(1882)

Performance is not a publication.

Uproar Co vs Hat. Broadcasting Co 9 F,
Ferris vs Frohman 228 II S 424 (ISIS)

Supp 558 (1954)

P*® distribution of intellectual property or work is capable of

amanp
ie pol

The restrxc
not unreasonable n

they tend to create value, ana aevexop xir&eresx
interf erring with the coarse of trade, which it -
works have never been placed in trading media, and since the artist b
his restrictive covenant increases the uses and is more able to give
his works and art to the public within proper limitations.

The radio, motion picture, television have great value and are

the subject of pop
rights and deserve
definite easements

uch th

”!t re

a man has a right to withhold from all disseminatio:
his thoughts, sentiments, and ©motions no matter
what their media of expression, he has a right to
restrict or limit this dissemination® f!
tt Applying that principle to the instant case it is is
view that the plaintiff is entitled * to decide whet
and Wll0!Ol ji ISXI.C1 1*3.0 St&ci .£ ClOt* whose advantage* his^ren
Ltion of musical composition shall be mechanically r
■ produced.”

Waring vs W D A. S 587 Pa 455, at 459,481.

Edison, vs Edison Pelyform. Co,. 78 I J Eq 38
Foster Melbomf Co vs Chian 134 JCy 424
Kuna vs Allen 102 Kans 885
70 IT 8 L Rev 455.

51 Harvard Law Review 171.

38 Columbia. Law Review X81
86 fniv of Penns law Rev 217
25 Washington lair Rev Quarterly 283
15 N I II Law Quat, Rev. 275.

To allow Respondent to benefit financially by Complainant
work and skill would be an unfair trade practice and equity will